Friday, June 3, 2011

Federal Court Rules Against Government Redaction Action

Censors can’t just black out portions of public documents, casually deciding disclosure might bedevil foreign relations, a three-judge panel of the Federal Court of Appeals has ruled in a shot across the bow of a government accused of being too secretive.

The case dates back to 2007 when Stephen Harper’s government blacked out all references to torture, extrajudicial killing and other violent mistreatment of detainees in Afghan hands, even as ministers were telling the House of Commons they were unaware of any nastiness.

Even after The Globe and Mail published the “blacked out” portions of the documents, the government refused to make them public under the Access to Information Act, saying that disclosure would undermine national security and wreck relations with the Karzai government in Kabul.

“It’s symbolic but it’s important,” said Michel Drapeau, a University of Ottawa law professor and Canada’s foremost expert in the Access to Information Act. Prof. Drapeau, a retired colonel and author of the primary university textbooks on Access to Information, called the judgment a “shot across the bow” of government and “a most welcome victory.”

The ruling against the Minister of Foreign Affairs concludes there was a “failure to exercise the discretion” required under the Act. In effect, the appeals court judges made no finding as to whether the censored passages should have been disclosed, only that there was no evidence of proper consideration by the minister and that the censorship was arbitrary.